US Visa Options

The Alphabet Soup of US Visa Options

Before we talk about visa options, let’s clarify exactly what a visa is. I often get calls from potential clients in a panic because their visas are about to expire. A visa does not control your permission to be in the United States. A visa is simply the stamp in your passport put there by a US Consul. It serves as an application to enter the U.S. It must be valid and unexpired on the day that you are presenting yourself at the border or airport to come in to the US. It should be in the correct classification consistent with your intended purpose to enter the US, i.e. if you are coming to work then it should be some sort of work visa; if you are coming to go to school, it should be a student visa, etc. Now, once you successfully are admitted to the US you get a document that shows where and when you entered the US and in what visa classification you were admitted. It is that document, currently called a Form I-94, that controls your authorized period of stay in the US, both the time you are permitted to remain in the US and the status in which you have been admitted, which in turn controls what activities in which you are permitted to engage. Therefore, the visa expiration date is of no consequence once you enter the US but is only important if you are planning to travel out of the US and seek re-admission.

That said, there are a broad range of non-immigrant visas available. For a complete listing, I refer you to my Immigration A to Z. The most serviceable are as follows:

E Visas:

Many people refer to these visas as business visas. The E visas come in 2 flavors: E-1 which is a treaty trader and E-2 which is a treaty investor. These temporary non-immigrant visas require a treaty between the U.S. and one’s country of nationality. There are now about 80 countries with treaties with the U.S. that allow for either the trader or investor visa or both. Since the visas are based on treaties, one should always check for the most current information because new treaties are negotiated all the time. As of now, the following countries have at least one of these treaties: Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Brunei, Bulgaria, Cameroon, Canada, Chile, China (Taiwan), Colombia, Congo, Costa Rica, Croatia, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Greece, Grenada, Honduras, Iran, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, South Korea, Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Serbia and Montenegro, Singapore, Slovakia, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, Uruguay, United Kingdom and the former Yugoslavia. Less one think that this is all the countries in the world, consider several notable absences, such as Brazil, India, Peru, Russia and mainland China.

The rules governing issuance of E-1 and/or E-2 visas are quite intricate. And unlike most non-immigrant visas the process does not depend on a prior petition filed with the immigration authorities in the US. Since the visa is contingent upon a treaty and treaties are the purview of the Department of State and consulates represent the State Department abroad, applications are taken directly at the US Consulate in one’s home country. This can be both a blessing and a curse. A blessing in that the process can be shortened since there is no prior bureaucratic process in the US, but a curse in that the Consular officer is not bound by any prior decision of the US immigration service and has full discretion to grant or deny the visa with no formal appeal process and little to no review of a decision. Also, as with diplomatic visa holders, those who apply for permanent residence must waive their rights and immunities under the relevant treaty. However, contrary to popular opinion that does not mean that an E visa holder cannot become a permanent resident of the United States.

Both visas require that there be a US commercial entity (normally a company) that is majority-owned and/or controlled by nationals of the treaty country and that the applicant holds the same nationality. The E-1 requires that at least 51% of the substantial volume of trade that the visa demands is between the US and that treaty country; and the E-2 requires that there be a substantial commercial investment in the US that will do more than merely support the investor and his family. Although these visas are subject to what may appear to be the whims and fancies of the Consul, they are immensely popular and have 2 added benefits: (1) spouses of these visa holders may apply for and obtain unrestricted employment permission and (2) there are essentially no limits on how long one may ultimately remain in the US although the visa holders must have an absolute intent to eventually depart the US These visas are among the most popular since the foreign national is in control. There is no sponsorship required, no waiting for a job offer, and no requirement to be transferred from a parent or subsidiary company. For those fortunate enough to hold citizenship in one of the treaty countries, these visas offer significant opportunities to relocate to the US.

H-1B visa:

This non-immigrant visa is reserved for those people who have offers of employment from US employers where the position is classified as one that normally requires a minimum of a specific 4 year university degree for an entry level position. The foreign applicant must show that he or she holds the US equivalent of this university degree. That is normally done by an outside agency that evaluates the academic credentials of the applicant and provides an advisory opinion to the US immigration service. The law allows the applicant to substitute 3 years of progressive professional work experience for each missing year of university studies. The US company must agree to pay at least the prevailing or average wage for the position offered and employ the foreign worker under the same terms and conditions in which it employs other workers for similar work.

The visa is normally granted for an initial period of 3 years for either full or part-time employment and can be renewed for a maximum of 6 years. It is attached to a specific employer but the applicant may “port” to a new sponsoring employer at any time. Spouses and minor children are granted H-4 visas but no work authorization is permitted. The 6 year maximum may be extended providing the applicant has proceeded to a certain level of “green card” before the end of the 6 years. In addition, applicants may continue to hold H-1B visas even after they have sought permanent residence in the US and thus do not require applicants to demonstrate any intent to return to their home country when applying for the visas at the US Consulate. The problem with the H-1B visa is that it is limited to 65,000 new visas each federal fiscal year which starts on October 1st. One is permitted to apply for the visa up to 6 months in advance so that April 1st becomes the initial date for applications. In years past, all 65,000 visas have been taken very quickly leaving a large gap after October 1 until the next year. Thus, the H-1B visa has become a less attractive tool for many foreign professionals.

L-1A and L-1B visas:

These are non-immigrant visas designed for managers and executives of multi-national companies (L-1A) to be transferred from overseas companies to US companies where the person to be transferred has been employed by the overseas company for at least 1 year of the preceding 3 years as a manager or executive and will be coming to a US company which has a common ownership with the overseas company to serve as a manager or executive. The visa is granted for a maximum of 7 years. If the US company has been doing business for less than 1 year, then the first visa is granted as “start-up” operations and will be given for one year only based on a simple showing of the basic qualifying elements. After the first year, the US company must file for a 2 year extension of the visa and will need to show that the company is now doing enough business to warrant the on-going services of the manager or executive. The basic elements are: the 2 companies must be owned and controlled by the same people, the manager or executive must have served in such a role and been employed for at least 1 year of the preceding 3 years, must be coming to serve in a managerial or executive capacity, the foreign company must continue to do business and the foreign company or its owners must make a financial commitment to the organization of the US company.

The L-1B visa is for a maximum of 5 years and is reserved for those employees of the company that have “specialized knowledge” of the overseas company’s business practices, procedures and/or products. These L visas do not require any substantial investment in the US but are granted for stay and work in the US for that specific employer only. Spouses and minor children of L-1 visa holders are granted L-2 visas and spouses are eligible to seek and obtain full employment authorization. In addition, applicants may continue to hold L visas even after they have sought permanent residence in the US and thus do not require applicants to demonstrate any intent to return to the UK when applying for the visas at the US Consulate. The visas are very serviceable for those who can commit to keeping a UK business up and running while operating a US business as well.

O Visa:

The O visas are those non-immigrant visas that relate to persons of extra-ordinary ability in the sciences, arts, education, athletics or business and their accompanying essential support personnel. The standard for this category of visa varies a bit depending on whether the field of endeavor is the performing arts, the fine arts or the remaining sciences, education, business or athletics. Essentially, the immigration service wants to see that these applicants are at a level of expertise that indicates that they are one of a small percentage of their peers who have risen to the very top of their fields of endeavor. For the arts, the standard is slightly different and basically relates to distinction and a high level of achievement. The immigration service uses a laundry list of criteria as a tool by which to determine if one may qualify in this elite category. The O visas also require a written consultation with a union or peer group to advise the immigration service that the foreign national is indeed extraordinary, and that there is no objection to having him or her come to the U.S. to continue to contribute those abilities to this country.

P Visas:

The P group of visas is essentially non-immigrant visas that were developed to create opportunities for professional athletes, athletic teams and entertainers. The P-1 is for athletes or entertainers who perform individually or as part of a group or team that is internationally recognized and/or who have had a sustained and substantial relationship with the group over a period of at least one year. P-2 visas are reserved for those performing artists or entertainers who are coming to the U.S. as part of a reciprocal exchange program, and P-3 visas are for those who seek admission to entertain, teach, coach or perform in a culturally unique program. The people who use these visas range from circus performers; individual athletes like golf professionals; athletes, whether in the professional, minor and amateur team sports; performers for the ballet, the orchestra or pop and rock bands; and the sitar player or belly dancers you may find at ethnic restaurants and stage shows. Just as with the O-1, a consultation with a union or peer group is normally required.

R Visa:

These visas are for people who have been a member of a particular religious denomination for at least the past 2 years and will be coming to the US to work with their church, temple, synagogue, mosque, etc. or any religious organization associated therewith for a temporary period of time. The work must not be purely administrative; it must relate to the religious activity. The work can be paid or volunteer, full or part-time. You can use this visa for up to 5 years. Recently the immigration service has become suspicious about the use of these visas and now insists on an on-site investigation conducted by the Department of Homeland Security before it will permit a religious organization to sponsor someone for the R-1 visa.